Decided: September 23, 1992.
A.C.R., AN INFANT BY HER GUARDIANS AD LITEM, L.R. AND D.R.; AND L.R. AND D.R., PLAINTIFFS,
CHARLES VARA, RICHARD ALBANESE, ROBERT POLISSE, BOARD OF EDUCATION OF LODI, AND ROSE DIBIASIO, DEFENDANTS. J.N., AN INFANT BY HER GUARDIANS AD LITEM, A.N. AND L.N.; E.Y., AN INFANT BY HER GUARDIANS AD LITEM, B.Y. AND R.Y.; L.N. AND A.N., INDIVIDUALLY; AND R.Y. AND B.Y., INDIVIDUALLY, PLAINTIFFS, V. CHARLES VARA, RICHARD ALBANESE, LINDA MASULLO, ROBERT POLISSE, BOARD OF EDUCATION OF LODI, AND ROSE DIBIASIO, DEFENDANTS. M.R., AN INFANT BY HER GUARDIAN AD LITEM, C.B., AND C.B., INDIVIDUALLY, PLAINTIFFS, V. CHARLES VARA, RICHARD ALBANESE, LINDA MASULLO, ROBERT POLISSE, BOARD OF EDUCATION OF LODI, AND ROSE DIBIASIO, DEFENDANTS. V.G., AN INFANT BY HER GUARDIANS AD LITEM, J.G. AND A.G.; AND J.G. AND A.G., PLAINTIFFS, V. CHARLES VARA, RICHARD ALBANESE, ROBERT POLISSE, BOARD OF EDUCATION OF LODI AND ROSE DIBIASIO, DEFENDANTS
[264 NJSuper Page 566] This consolidated action was brought on behalf of the infant plaintiffs against the Lodi Board of Education, various teachers and school administrators. Plaintiffs, who were sexually assaulted by a teacher allege that these defendants breached their duty to exercise reasonable supervisory care for their safety. As a result of this breach of duty, plaintiffs allege that they sustained serious
and permanent injuries both physical and psychological. The matter currently before the court is defendants' motion for partial summary judgment on the grounds that under N.J.S.A. 59:9-2(d) plaintiffs' claims are not compensable under the New Jersey Tort Claims Act.
According to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq., the Legislature declared:
It is . . . the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein.
The limitations on recovery against a public entity are set forth in N.J.S.A. 59:9-2(d) which provides:
No damages shall be awarded against a public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $1,000.
The infant plaintiffs in this case have undergone psychiatric evaluations which conclude that each child is suffering from post traumatic stress disorder. This medically diagnosed disorder is characterized by both physical and psychological symptomatologies.*fn1
Defendants argue that these injuries should be characterized as "pain and suffering" under the Tort Claims Act whereby they are not compensable. In support of this argument, defendants rely on Srebnik v. State, 245 N.J. Super. 344, 585 A.2d 950 (App.Div.1991).
In Srebnik, the plaintiff brought a Portee claim (see Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980)) against the State of New Jersey and the State Highway Authority for damages she sustained while witnessing her husband's death. The couple had been traveling on the Garden State Parkway when they suddenly hit a guardrail, flipped over and landed in a ditch below the roadway. Mrs. Srebnik sued defendants for their failure to
respond to the accident in a reasonable and prompt fashion and for failure to adequately inspect the scene of the accident. Plaintiff alleged that it was this lack of assistance that caused her husband to lose his chance for survival which resulted in her permanent emotional and psychological pain. Id. at 347, 585 A.2d 950.
The Appellate Division in Srebnik held that the depression and anxiety suffered by the plaintiff after witnessing her husband's death was "emotional distress" that is not compensable under the Tort Claims Act. The Srebnik Court relied heavily on Ayers v. ...
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